Appeal, No. 50, Jan. T., 1951, from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1947, in Equity, No. 30, in case of William V. Loughran v. John F. Matylewicz, Jr. et ux. Decree affirmed.
S. A. Davis, with him Raymond Bialkowski and Bialkowski, Bialkowski & Bialkowski, for appellants.
J. Julius Levy, with him Thomas J. Foley and Leonard L. Silverstein, for appellee.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
William V. Loughran, appellee, on August 11, 1947, instituted this action in equity against John F. and Elizabeth B. Matylewicz, appellants, to restrain them from interfering with his lawful possession of Baylor's Pond in Lackawanna County. The chancellor granted the relief prayed for and appellants take this appeal from the order of the court en banc dismissing their exceptions to the decree nisi and making the injunction permanent.
Appellee claimed ownership in fee of the land covered by the waters known as Baylor's Pond and charged appellants, record owners in fee simple of land bordering the pond, with trespassing by attempting to commercialize the pond and make it a public amusement
center. Appellants took title to their property March 14, 1918, and contend that by adverse commercial use from that time they have established an easement by prescription. Appellee's possession dates from October 17, 1944, in which year he caused to be reconstructed a dam about two feet high at the outlet of the pond to prevent the escape of fish with which it was stocked. In addition, since the time he came into possession, appellee has spent $25,000 to $30,000 in improvements to his property. It does not appear that appellants spent any sums of money developing a boating, bathing and fishing business.
From the time they took possession of the property bordering the pond, appellants have had for hire a parking lot, a picnic ground, and from one to four boats. These facilities have been hired to others only sporadically. Appellants kept no records of receipts of reservations and were unable to show that more than a few persons or groups had used their facilities, in the 21 years following their acquisition of the property.
Appellants contend that (1) appellee does not own the land beneath the pond, (2) their commercial uses for more than 21 years created an easement by prescription in them over the pond, and (3) since a portion of the pond now covers their land and swimming hole as a consequence of a rise in the water level of the pond following the reconstruction of the dam, they should not be enjoined from using their own property.
Appellants argue that appellee does not have good title to the land above which the pond lies, but as found by the chancellor, appellee owned the pond and the land underneath it by virtue of a "regularly connected" title stemming from William Baylor, who acquired the property from the Commonwealth in 1869. Aside from this evidenced chain of ...